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Standing Lessons: What We Can Learn When Conservative Plaintiffs Lose Under Article III Standing Doctrine

The Supreme Court’s Article III standing doctrine has plagued liberal groups for nearly forty years. Recently, however, the doctrine has blocked a number of conservative lawsuits opposing gay marriage, the 2010 health care law, and the expansion of federal funding for stem-cell research.

What can we learn from these cases? Because contemporary criticisms of standing doctrine have usually come from the left and defenses from the right, it is commonplace to associate arguments for broad standing with left-wing political agendas. But, as some scholars have shown, older versions of standing doctrine served liberal purposes in the New Deal and its immediate aftermath. The current strict standing doctrine, now keeping conservative activists out of federal court, may have returned to its roots.

But if one truly believes that the federal courts should be open to more plaintiffs, one should instead see that these cases present a strange-bedfellows moment that might persuade a majority of the Court to alter existing standing doctrine. Liberal members of the Court generally advocate for a more expansive doctrine of standing; conservative members of the Court usually support restrictive standing doctrine, but their interest in reaching the merits of certain cases may lead them to agree to certain reforms. In this Article, I address that prospect, as well as the possibility that Congress might enact legislation to force the standing question.

If the Court seizes the opportunity to reform standing doctrine, what are its options? Will changes to the doctrine affect all plaintiffs? Or are these recent examples of conservative impact litigation different in kind from the cases that generated current standing doctrine? In answering these questions, I review recent suggestions for amending the doctrine. In the end, I conclude, these new conservative cases are lamentably unlikely to lead to much change in the law of standing.